Citation Nr: 1330747
Decision Date: 09/25/13 Archive Date: 09/30/13
DOCKET NO. 10-08 465A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to an initial compensable rating for occipital folliculitis.
2. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD).
3. Entitlement to an initial compensable rating for right foot sinus tarsiitis enthesopathy and tendonitis.
4. Entitlement to service connection for urinary tract infections (UTIs).
5. Entitlement to an initial compensable rating for allergic rhinitis.
6. Entitlement to service connection for eczema or dermatitis.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
Kristy L. Zadora, Counsel
INTRODUCTION
The Veteran had active duty service from February 1983 to January 2009.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina as part of the Benefits Delivery at Discharge (BDD) program. This rating decision, in pertinent part, denied the Veteran's claims for service connection for allergic rhinitis, occipital folliculitis, eczema/dermatitis and UTIs. In addition, the Veteran's claims for service connection for GERD and right foot sinus tarsiitis were granted; initial noncompensable ratings were assigned for each disability.
The Veteran also appeals from a February 2011 rating decision which granted his claims for service connection for allergic rhinitis and occipital folliculitis; initial noncompensable ratings were assigned for each disability.
The Board notes that the purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.
Moreover, this appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.
The Board notes that, in July 2008, the Veteran executed an Appointment of Individual as Claimant's Representative (VA Form 21-22a) in favor of AMVETS. In March 2009, the Veteran executed a VA Form 21-22a in favor of the American Legion. The Board recognizes this change in representation.
As a final preliminary matter, the Board notes that the Veteran's representative identified claims for a higher initial rating for bilateral pes planus and service connection for a left eye disability as on appeal in its August 2013 Informal Hearing Presentation. However, the Veteran has not perfected an appeal as to these claims as her March 2010 substantive appeal did not list these claims, and, as such, they are not before the Board for its consideration.
In her March 2009 notice of disagreement, the Veteran argues that her currently diagnosed irritable bowel syndrome is the result of her service and the cause of her current constipation symptoms. This issue has therefore been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.
The Board's decision as to the claims for an initial compensable rating for occipital folliculitis and GERD, as well as a claim for service connection for UTIs, is set forth below. The issues of entitlement to a compensable rating for right foot sinus tarsiitis and allergic rhinitis as well as service connection for dermatitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.
FINDINGS OF FACT
1. All notification and development actions needed to fairly adjudicate the claims herein decided have been accomplished.
2. The Veteran's occipital folliculitis has not caused disfigurement of the head, face or neck, does not cause scars, has involved less than five percent of the entire body and less than five percent of exposed and does not require systemic therapy.
3. The Veteran's GERD manifested as heartburn and regurgitation without difficulty swallowing, or substernal or arm or shoulder pain which was productive of considerable impairment of health.
4. The Veteran does not have a currently diagnosed chronic UTI.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable rating for occipital folliculitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.31, 4.118 (2012), 7800, 7801-7806, 7813 (2008).
2. The criteria for an initial compensable rating for GERD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.14, 4.113, 4.114, 7346 (2012).
3. The criteria for service connection for UTIs have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.
Prior to initial adjudication of the Veteran's claims decided herein, a letter dated in September 2008 fully satisfied the duty to notify provisions as to the claim for service connection for chronic UTIs. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. As the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board is aware of the decision of the United States Court of Veterans Appeals (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (holding that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life). However, relying on the informal guidance from the VA Office of the General Counsel and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that the Vazquez-Flores decision does not apply to the present case. According to VA's Office of the General Counsel, as these matters concern an appeal from an initial rating decision, VCAA notice obligations are fully satisfied once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely notice of disagreement with respect to the initial rating or effective date assigned following the grant of service connection.
All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate her claims, as well as the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify.
The Board also concludes VA's duty to assist has been satisfied. The evidence of record includes the service treatment records, various private treatment records and the VA examination reports. Additionally, the Veteran was afforded VA examinations in order to adjudicate her claim for service connection for UTIs.
With regards to claims for an increased rating, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §3.327(a). The Veteran was provided with appropriate VA examinations in September 2008 and August 2010. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since she was last examined. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The aforementioned VA examination reports are thorough and supported by the outpatient treatment records. The examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeals. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of her claims such that the essential fairness of the adjudication is not affected.
II. Increased Rating
A. Relevant Statutes and Regulations
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.
A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Compare Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage
Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating"(assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
B. Occipital Folliculitis
The Veteran contends that a higher rating is warranted for occipital folliculitis as it caused painful red bumps on the back of her head with clear disfigurement (i.e. hair loss) in the irritated area. Her occipital folliculitis disability is rated under the diagnostic code 7813 for dermtophytosis. This diagnostic code provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813.
The regulations pertaining to rating skin disabilities were revised, effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008. As the Veteran's claim was received prior to that date, these revisions do not apply in this case and the Veteran has not requested review under the revised regulations. 73 Fed. Reg. 54708 (Sept. 23. 2008).
For disfigurement of the head, face, or neck, a 10 percent rating is assigned when one characteristic of disfigurement is present and a 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. A 50 percent rating for disfigurement of the head, face, or neck is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A rating of 80 percent for disfigurement of the head, face or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Id. 38 C.F.R. § 4.118, 7800 (2008).
The eight characteristics of disfigurement for purposes of evaluation under § 4.118 are: Scar five or more inches (13 or more centimeters) in length; Scar at least one-quarter inch (0.6 centimeters) wide at the widest part; Surface contour of scar elevated or depressed on palpation; Scar adherent to underlying tissue; Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); Skin indurated and inflexible in an area exceeding six square inches (39 square centimeters).
Dermatitis affecting less than five percent of the entire body or less than five percent of exposed areas and no more than topical therapy required during the past 12 months warrants a noncompensable rating. A 10 percent rating was warranted where dermatitis affected at least five percent but less than 20 percent of the entire body or least five percent but less than 20 percent of exposed areas or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, 7806 (2008).
A September 2008 VA examination report reflected the Veteran's complaints of intermittent rashes that had currently subsided as well as itching along the occipital area. Physical examination was negative for any skin abnormalities.
An August 2010 VA examination report reflected the Veteran's complaints of intermittent bumps on her scalp and that she applied erythromycin to her scalp daily. Side effects, the use of oral medications, skin malignancy or systemic symptoms were denied. Physical examination revealed scattered areas of resolving folliculitis on her scalp and on the nape of her neck. The hair follicles and scalp were noted to be normal and her hair was found to be thinning. There were no pustules or evidence of infection found.
A February 2011 VA addendum to the August 2010 VA examination indicated that the Veteran's mild occipital scalp folliculitis involved one percent of her total body surface and 1.5 percent of her total exposed areas.
As to the Veteran's occipital folliculitis, the VA examiner determined that it involved one percent of the Veteran's total body surface and 1.5 percent of her total exposed areas. Additionally, while the VA examiner and the Veteran herself have indicated that the Veteran applied a topical erythromycin cream to her affected area, neither have reported the use of systemic therapy such as corticosteroids or other immunosuppressive drugs to treat her skin disorder. In addition, examinations have been consistently negative for scarring. A compensable rating under the diagnostic codes for dermatitis and scars are therefore not warranted. 38 C.F.R. § 4.118, 7801-7805, 7806, 7813 (2008).
As the Veteran's occipital folliculitis affects her scalp (i.e. head), the Board has also considered whether a rating for disfigurement of the head, face or neck is warranted. However, although the August 2010 examination report found the Veteran's hair to be thinning, no characteristics of disfigurement had been found on objective examination nor have they been alleged by the Veteran. A compensable rating under the diagnostic code for disfigurement of the head, face or neck is therefore not warranted. 38 C.F.R. § 4.118, 7800.
The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected occipital folliculitis; however, the Board finds that her symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted.
C. GERD
The Veteran contends that a compensable rating is warranted for her GERD as she experiences abdominal pain and cramping. Her service-connected GERD is rated under the diagnostic code for a hiatal hernia.
A 10 percent rating is warranted for hiatal hernias that manifest two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn) and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis (vomiting blood) or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, 7346.
A September 2008 VA examination report reflected the Veteran's complaints of acid indigestion, pyrosis and constipation. She also reported having a poor response to her treatment without any side effects. Nausea, vomiting, diarrhea, constipation, hemorrhoids, hernias, abdominal masses, abdominal swelling, regurgitation and jaundice were denied. Physical examination found no abdominal tenderness, palpable masses, hernia, ascites, abdominal guarding or periods of incapacitation. Abdominal inspection and bowel sounds were found to be normal.
In a May 2012 substantive appeal, the Veteran wrote that she experienced heartburn, regurgitation and nausea.
The evidence of record establishes that Veteran's GERD manifested as heartburn and regurgitation without difficulty swallowing or substernal or arm or shoulder pain. Moreover, the Veteran has not alleged, and the clinical evidence does not suggest, that the Veteran's symptoms were productive of considerable impairment of health. A compensable rating for GERD is therefore not warranted. 38 C.F.R. § 4.114, 7346.
The Board has considered whether the Veteran is entitled to a separate or higher rating under other potentially applicable diagnostic codes; however, 38 C.F.R.
§ 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Additionally, 38 C.F.R. § 4.114 indicates that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Therefore, as the Veteran's GERD is evaluated under Diagnostic Code 7346, she is not entitled to a higher or separate rating under any other potentially applicable diagnostic code.
The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected GERD; however, the Board finds that her symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted.
D. Other Considerations
Additionally, the Board has contemplated whether these matters should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under
§ 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.
Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id.
The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected occipital folliculitis and GERD with the established criteria found in the rating schedule. The Board finds that the Veteran's occipital folliculitis and GERD symptomatology are fully addressed by the rating criteria under which such disability is rated. In this regard, all of the Veteran's symptomatology is contemplated by the rating criteria, to include those symptoms which are not specifically enumerated. There are no additional symptoms of her occipital folliculitis and GERD that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of her service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).
The Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability). The Veteran has not alleged, and the record does not establish, that she was unemployed as a result of her service-connected occipital folliculitis and/or GERD. Therefore, further consideration of a TDIU is not warranted.
III. Service Connection
A. Applicable Laws and Regulations
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that nephritis is listed as a chronic disease under 38 C.F.R. §§ 3.307(a), 3.309(a).
In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.")
Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
B. UTI
The Veteran contends that service connection for chronic UTIs is warranted as she experienced such infections both during and after service. She also argues that just because such infections were not present during her VA examinations does not mean that the UTIs were not a problem for her.
Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.
Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001).
Service treatment records document multiple UTIs, including in September 2004, March 2007 and April 2007. Acute cystitis was also assessed in September 2004.
A September 2008 VA examination contained diagnoses of status-post cystitis and a history of chronic UTIs but did not contain a diagnosis of a current disability. Similarly, the post-service clinical evidence does not reflect the treatment or diagnosis of an UTI.
The medical evidence of record simply does not corroborate the Veteran's assertions as to experiencing chronic or recurrent UTIs since service-as she asserts in connection with this claim-and there is otherwise no competent, persuasive evidence that she has, or at any time pertinent to this appeal has had, such a disability.
Here, the Veteran filed her claim for service connection in July 2008. As such, no evidence supports a finding of an UTI at any time frame pertinent to this appeal. Indeed, the September 2008 VA examination contained diagnoses of status-post cystitis and a history of chronic UTIs but did not find a current disability. Thus, there is no competent evidence to support a finding that the Veteran has, or at any time pertinent to this claim has had, an UTI, and neither the Veteran nor her representative has presented or identified any such evidence or opinion.
Thus, without a medical evidence of a current disability within the meaning of McClain, fundamentally, there can be no award of service connection. Rather, the evidence indicates no more than the own, unsubstantiated reports of recurrent or chronic UTIs. Moreover, while the Veteran generally claims that her history of UTIs establishes a current disability, this argument directly conflicts with the holding in McClain, which requires a current disability during the appellate period even if the disability had resolved.
As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report her own symptoms or matters within her personal knowledge. See Jandreau, supra; Buchanan, supra. In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).
However, matters of medical diagnosis for disability not capable of lay observation (and, if competently shown, a medical relationship between such disability and service)-such as the one here at issue-are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without appropriate medical training and expertise to competently self-diagnose an UTI, to render a diagnosis as to a current UTI, or to opine as to the etiology of any such disability, the lay assertions in this regard have no probative value. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge').
The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, medical evidence indicates that the Veteran does not have the disability for which service connection is sought-and there is no contrary, competent evidence-there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra.
For all the foregoing reasons, the Board finds that service connection for UTIs. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
An initial compensable rating for occipital folliculitis is denied.
An initial compensable rating for GERD is denied.
Service connection for UTIs is denied.
REMAND
With respect to the issues remaining on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims for an initial compensable rating for allergic rhinitis and right foot sinus tarsiitis as well service connection for dermatitis so that she is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c).
The Board notes that the Veteran was last afforded a VA examination in August 2010 in order to determine the current nature and severity of her allergic rhinitis. In her December 2012 substantive appeal, she indicated that such disability had worsened in that her lips swelled and that she also experienced vibrations in her ear as a result of her allergic rhinitis. As the Veteran has described worsening symptomatology since the last VA examination, she should be afforded a new VA examination to determine the current nature and severity of her allergic rhinitis. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).
With regard to the Veteran's right foot sinus tarsiitis, the Veteran was last afforded a VA examination in August 2010. The August 2010 VA examiner determined that the Veteran was essentially asymptomatic, with the exception of mild tenderness along the top of her right foot, and that she did not have a hallux valgus deformity. However, a September 2008 VA examination report noted mild hallux valgus deformities on the right foot. Moreover, it is not clear whether these deformities are attributable to her service-connected sinus tarsiitis. On remand, clarification of the Veteran's current right foot symptoms should be obtained.
With regards to the Veteran's claim for service connection for dermatitis/eczema, the Board notes that the service treatment records document multiple incidents of dermatitis and eczema. An August 2010 VA examination report indicated that no active eczema was found and consequently offered no etiological opinion. However, a June 2010 private treatment note contained an assessment of atopic dermatitis. See McClain, supra. In addition, the Veteran has generally argued that her dermatitis/eczema was episodic or intermittent. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (VA should attempt to schedule a skin examination for a cyclical disorder during an active stage of the disease). Therefore, in light of this deficiency, it is unlikely that the August 2010 VA opinion would withstand judicial scrutiny and an addendum to this VA opinion should be obtained to determine the nature and etiology of the Veteran's claimed dermatitis/eczema.
Additionally, due to the length of time which will elapse on remand, updated VA treatment records dated from July 2009 to the present from the Montgomery, Alabama, VA Medical Center (VAMC) that are not already associated with the claims file should be obtained for consideration in the Veteran's appeals. In addition, the Board notes that the Veteran specifically referenced treatment that she had for her allergic rhinitis in January 2011 and that records related to that treatment should be obtained.
Accordingly, the case is REMANDED for the following action:
1. Obtain the Veteran's updated treatment records from the Montgomery VAMC pertaining to her allergic rhinitis, sinus tarsiitis and/or dermatitis dated from July 2009 to the present, to include any specifically include an treatment for allergic rhinitis in January 2011. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records.
2. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of her service-connected allergic rhinitis. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.
Based on examination of the Veteran, and review of all pertinent evidence, the examiner should render specific findings as to whether the Veteran had polyps and/or nasal obstruction. In addition, the examiner should address the Veteran's contention that she suffered from a swollen lip and vibration in her ear as a result of her allergic rhinitis.
The examiner should clearly indicate whether the claims file reflects any change(s) in the severity of allergic rhinitis since July 2008; and, if so, the approximate date(s) of the change(s), and the severity of the disability as of each date.
All opinions offered should be accompanied by a rationale.
3. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of her service-connected right foot sinus tarsiitis. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.
The examiner should specifically note all manifestations of the service-connected right foot sinus tarsiitis, as well as describe the frequency and severity of each manifestation. The examiner should further determine whether the Veteran's hallux valgus is attributable to, or a manifestation of, her service-connected right foot sinus tarsiitis. If so, the examiner should determine whether the sinus tarsiitis considered severe, equivalent to amputation of great toe or if surgery had been performed with resection of metatarsal head.
The examiner should also provide a current assessment of the overall severity of the service-connected right foot sinus tarsiitis--as moderate, moderately severe, severe, or resulting in loss of use of the foot.
The examiner should clearly indicate whether the claims file reflects any change(s) in the severity of sinus tarsiitis since July 2008; and, if so, the approximate date(s) of the change(s), and the severity of the disability as of each date.
All opinions offered should be accompanied by a rationale.
4. After obtaining any outstanding records, obtain an addendum to the August 2010 opinion, if possible, or afford the Veteran a new examination with an appropriate examiner, to determine the nature and etiology of her claimed eczema/dermatitis. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.
The examiner is asked to furnish an opinion with respect to the following questions:
Is it at least as likely as not (50 percent or greater probability) that any such diagnosed eczema/dermatitis had its onset during the Veteran's period of active duty service from February 1983 to January 2009; or, was any such disorder caused by any incident or event that occurred during her period of service, including the multiple findings of dermatitis and other skin disorders?
The examiner should specifically consider the Veteran's lay statements regarding her eczema/dermatitis, including her reports that it is intermittent or episodic in nature. The rationale for any opinion offered should be provided.
In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that her reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so.
A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board.
5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs